How can I avoid having my family go to court if I become disabled?

If you become disabled or develop dementia, you will not be able to manage your own money and will need someone to make healthcare and financial decisions for you. 

What happens if you do nothing?

If you do nothing, you will not be able to decide who will make your financial and healthcare decisions if you become incapacitated. A court will make those decisions for you and it may be impossible for the court to know what you would have wanted. 

To become your guardian, your family must file an action to have you declared incompetent. A guardianship action can be an expensive and emotionally difficult process for your family. If you own a business and develop dementia, your business will also be at risk unless you have taken steps to plan ahead for a disability or incapacity. 

A guardianship action means not only will your physical and mental situation and personal health records be discussed in court, but also your family dynamics. These hearings can  expose family grudges and divisions.

Guardianships 

To apply for guardianship, your family will probably need to hire an attorney. In addition to attorney costs, you should know, there are two main guardianship issues that cause family fights and increased cost. They are: 

Capacity -  Unfortunately, going to court tends to bring out the worst in families, especially when there are pre-existing family divisions. Sometimes family members don't agree a loved one is incapacitated. This happens more frequently when one family has been the primary caretaker of the incapacitated person. Other family members simply don't want to hear or acknowledge that a loved one is incapacitated or has dementia. Family members in denial make court proceedings longer because additional testimony is needed to prove incapacity.

  • To make things more difficult, capacity is not something that is always obvious during short contact with a loved one. Many times, a person with dementia can appear to be normal in social situations and for short periods of time.  In even moderate or advanced stages of dementia, it may take trained medical personnel and objective testing to diagnose dementia and incapacity. Sometimes, even when there are objective tests, family members don't want to accept a diagnosis a loved one is incapacitated.

Who will be in Control - Families also argue about whom should be named guardian and sometimes the best interest of the incapacitated person gets lost in the fighting. Angry family members may think the caretaker is not doing a good job and should not be named guardian. Second-guessing starts. Sometimes an unscrupulous family member wants control of an incapacitated person's money or property. A family member with few assets may want to live in the incapacitated person's home for free. These situations can lead to financial exploitation and elder abuse. If a family is fighting, a court is more likely to appoint DSS as guardian. When you haven't chosen who will be in charge of your health and financial matters in advance, you are at the mercy of the court's decision. 

No matter what the reason for the fighting, when family members are not in agreement about capacity or who should be guardian, an incapacitated person is at risk and the guardianship proceeding will cost more! 

How You can Stay in Control

By preparing advance directives and a living trust when you are healthy, you can maintain control, set clear guidelines for your family, and keep the court out of the decision-making process when you are sick. Advance directives include your financial power of attorney and your healthcare power of attorney. These documents allow you to name someone to make healthcare and financial decisions for you if you are alive but incapacitated. A living will enables you to specify if you want to be kept alive by artificial means such as nutrition and hydration under certain circumstances. A living will also allows you to determine the circumstances under which you would not want to be kept alive by artificial means.

A living trust goes even farther. It extends beyond advance directives because a trust can cover both your lifetime and what happens when you are gone. A trust allows you to name someone to manage your assets and business during your lifetime if you become incapacitated. These people are called incapacity or successor trustees. In the trust, you can even decide how your family will determine whether you are incapacitated. You can name physicians who will examine you to determine incapacity. Additionally, you can name the same individuals as your incapacity and death trustees or choose different trustees to manage your assets when you are gone. A trust gives you great flexibility and control over your future.

Advance directives and living trusts can keep your family out of court and prevent family disagreements. To find out more about how you can take control of your future, email or call, 704.887.5242 to schedule a consultation.

DISCLAIMER: This blog contains general educational information only. The information in this post does not constitute legal advice  to you and reading the information does not create an attorney-client relationship with Nancy Roberts or the Law Office of Nancy L Roberts, PLLC. You should not rely on this information as legal advice. Before taking any action, you should always seek legal advice from an attorney you hire, who advises you based on your specific facts, circumstances, situation, and the appropriate governing law.

 

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Nancy Roberts
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